Edward Charles Nginyo v Hans Jurgen Zahten & 4 others [2015] KECA 621 (KLR)
The bottom line
#Kenya's Court of Appeal gave an appellant a second chance to file his appeal on time, ruling that an honest mistake by a lawyer counts as an excusable delay.
What this practically means
#Executive summary
#Key legal issues
#Scope of the rule 4 discretion to extend time
The discretion is unfettered since the 1985 amendment removed the 'sufficient reason' stricture, and is exercised judicially on relevant factors.
The 1985 amendment to rule 4 removed the requirement to show sufficient reason and allowed extension on such terms as the court thinks just. The amendment was intended to facilitate deserving appeals and avoid shutting appeals out on mere lapses not prejudicing respondents. Relevant factors include delay, its reasons, chances of success and prejudice, but the list is not exhaustive.
Effect of rule 83 on an unfiled appeal
The notice of appeal is not deemed withdrawn automatically; a court order by a full bench is needed, so the applicant need not first seek extension to file a fresh notice.
The court relied on Dolphin Palms and Trimborn, and the full-court affirmation of Omolo, JA's ruling, holding that the phrase 'unless the court otherwise orders' in the predecessor rule 82 shows a court order is necessary to declare a notice of appeal deemed withdrawn, and such an order can only be made by a full bench under rule 80.
Mistake of law by counsel as excusable delay
Counsel's honest misapprehension that an extension application was necessary, where the 60-day period had in fact not expired, is an excusable blunder making the delay neither inordinate nor unexplained.
The appellant in fact had 60 days from receipt of certified proceedings on 12th February 2015 to lodge the record of appeal. His counsel honestly but wrongly believed an extension was necessary. This is the kind of blunder Madan, JA in Belinda Murai declared excusable, so the delay is excusable.
Failure to file notice of change of advocates
The omission was a procedural infraction that did not go to jurisdiction or cause prejudice and did not defeat the application.
Rule 23(1) serves notification purposes only, so that it is clear who is to be served with process and who bears responsibility for actions in the litigation. Such an infraction neither goes to jurisdiction nor prejudices respondents, so it did not justify striking out the application.
Legal principles established
#- The discretion of the Court of Appeal to extend time under rule 4 is unfettered but must be exercised judicially, and the factors to consider include period and reason for delay, chances of success and prejudice to the respondent.
- A notice of appeal is not automatically deemed withdrawn under rule 83 by mere lapse of time; a court order, validly made only by a full bench, is required to declare it deemed withdrawn.
- A single judge on a rule 4 application need only satisfy himself that the intended appeal is not flimsy or frivolous, not determine definitively whether it will succeed.
Court orders
#- 1.The motion dated 17th April 2015 is allowed on condition that the applicant shall file and serve upon the respondents within seven days of the ruling: the record of appeal; and notice of change of advocates
- 2.Costs of the application shall abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya
- E & L C C No. 61 of 2011
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Charles Nginyo v Hans Jurgen Zahten & 4 others [2015] KECA 621 (KLR)", Case Analysis (2015). Notice of Motion dated 17th April 2015 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/621/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.